How Many Pro Se Litigants?
How many cases are being handled by people without lawyers? The answer varies by state and by type of case. Madelynn Herman, a researcher at the National Center for State Courts, summarized a number of studies in a memorandum, “Pro Se: Self-Represented Litigants, Pro Se Statistics,” Sept. 25, 2006.
A large number of domestic relations cases have at least one party who is not represented by an attorney. Here are some percentages (with the jurisdiction and date of the study in parentheses):
- 49% of petitioners and 81% of respondents (Utah 2006)
- at least one party in almost 70% of cases (New Hampshire 2004)
- 67% of petitioners at time of filing, 80% at time of disposition (California 2004)
- 73% (Florida 2001)
- 70% (Wisconsin 2000)
While people have a right to represent themselves, there are certainly many people who represent themselves only because they don’t have the financial resources to hire someone. A case currently in the Washington Court of Appeals addresses whether a woman should have had court-appointed counsel in a proceeding at which she lost custody of her children. The Washington State Bar Association is considering whether to file an amicus brief in the case, In re Marriage of King. (See Trial Ad Notes post.)
Small claims courts are set up for people to handle their own cases. In fact, in some matters, people may not be represented. So it’s not surprising that a study in Utah (2006) found 99% of the petitioners and 99% of respondents in small claims court were self-represented.
For civil cases overall, a New Hampshire study (2004) found at least one party was self-represented in 85% of cases in district court and 48% of cases in superior court.
A California study (2004) reported 4.3 million self-represented court users.
George Wallace
December 27, 2006 @ 8:35 pm
California is one of those jurisdictions in which representation by an attorney in Small Claims Court is outright prohibited. Corporate parties are prohibited from appearing in Small Claims Court through persons who are on the payroll only for the purpose of appearing in Small Claims matters. Defendants in Small Claims have a right to appeal from any adverse decision; the “appeal” takes the form of a de novo hearing [i.e., a hearing as if the first one had never occurred] before a judge, and on appeal attorneys are permitted.
The jurisdictional limit of Small Claims Courts was raised in the past year or two from $5,000 to $7,500. I don’t have statistics to point to, but I suspect that increase carried with it an increase in the number of self-represented Californians.
The family law/domestic relations statistics you cite are interesting, and I am surprised that the percentages are as high as you report. I suspect that the number includes a great many proceedings — civil harassment order, for instance — that fall under the rubric of “family law” but that are not marital dissolutions (i.e, divorces). In a dissolution case, the unfortunate fact is that the rules for division of property (despite our essentially self-executing community property laws) and in particular for support and visitation issues are sufficiently complicated that being unrepresented by counsel is a recipe for trouble. A marriage that concludes without children or substantial property is easily wound up in California, but at least one spouse is likely to come out the loser if they proceed on their own in a case in which there are disagreements over minors or assets.
david giacalone
December 27, 2006 @ 8:56 pm
Thanks for stopping by and commenting, George. (And, thanks for letting your readers at Declarations & Exclusions, and A Fool in the Forest, know about shlep‘s recent Blawg Review award.) It’s good to have the perspective of a practicing California attorney. Of course, the Small Claims limits were increased specifically to bring more matters within the jurisdictional limit so that individuals could proceed in a user-friendly environment without a lawyer. I wonder how often insurer-defendants decide to appeal when they lose in Small Claims. Do you know?
Although there are many divorce cases where having a lawyer might be a good idea, I think you’d be surprised how often a pro se litigant can adequately protect his or her interests, and those of the children, in a court system with good self-help resources. That’s especially true when the noncustodial parent’s income is solely from employment (and not under the table) and a straightforward formula exists for child support. Here in New York, while representing the children, I’ve seen many a parent waste thousands of dollars on a lawyer who adds little or no value, but greatly increases acrimony.
Mary, that Washington State case is interesting. Here in New York, a parent can expect to have court-Assigned Counsel whenever they meet financial requirements and custody is at stake.
George Wallace
December 27, 2006 @ 9:12 pm
David,
I agree that increased availability of Small Claims was a driving force behind the increase in the jurisdictional limit. I am inclined to think that a further increase, to $10,000, would make sense for the same reason. I get fairly regular reports of what is going on in Small Claims Court from my clients, either because I have been hired by their insurers to advise them in preparing to appear in Small Claims Court or because they are small business owners who make or respond to Small Claims cases on a regular basis. At least in the Los Angeles area, the hearing officers in Small Claims cases encourage the parties to settle their own differences by negotiation without ever presenting their respective sides to the court. A reassuringly high percentage of the cases on the Small Claims docket on any given day are resolved without the necessity of evidence, argument or a formal judgment.
I have much less personal experience in the family courts on which to rely. Anecdotally, the likelihood that a lawyer will become involved for purposes of assisting one party to take advantage of or to inflict suffering upon the other is real and unfortunate. It is one of those fields in which some members of the profession too easily confuse “vigorous representation of my client’s interests” with “behaving like a thuggish brute.”
david giacalone
December 27, 2006 @ 9:23 pm
George,
Wow. What a quick reply — your clients must love the service. (Are you procrastinating over some other project?)
As you know, I am a very big fan of mediation and no firsthand how well it works in the small claims arena. If my health permitted working a set schedule, and being around all those germs, I would very much like to again serve as a volunteer mediator in small claims court here in Schenectady.
If the legal profession (our profession) took “working in the client’s best interests” seriously, it would be helping to set up more and larger mediation programs at courthouses around the nation.
jim keyes
May 20, 2007 @ 12:26 am
The Washington Pro Se Litigant’s Association [WPSLA] informs people about small claims court but does not endorse it at all. The advantage of small claims court in Washington is that your opponent is forbidden to use attorney representation. The disadvantages are a) that if the amount of damages is not large, there is no right to appeal an adverse decision; b) the judge will often ignore common court procedure and disallow actual questioning and cross-examining of witnesses; and c) the small claims court has no jurisdiction to enforce any judgment it grants. The losing party is free to ignore any judgment against them and the prevailing party has to proceed into the District Court, where the opponent’s attorney is allowed, in order to try to collect any judgment. Pro se litant’s in Washington are invited to visit our association’s website at http://wwww.prosewashington.com/ .